The Right of the Citizens of London to elect Sheriffs in their Common-Hall proved from the Custom of our Ancestors from their Charters History Antient Acts of Parliament Judgments and Resolutions of many Learned Judges IN Changes and Revolutions that have happen'd in this Nation this Prerogative or Privilege of chusing Sheriffs has had its Alterations It was originally in the Freeholders of every County not incorporated and they chose this great Officer in their Folkmote which in the Saxon Language is the Court of the Folk or People which we now call the County Court My Lord Cook from good Authority tells us That of Antient Time L. C. J. Cook Institut Part 2. Fol. 558. such Officers or Ministers as were instituted either for Preservation of the Peace of the County or for Execution of Justice because it concerned all the Subjects of that County and they had as great Interest in the just and due Exercise of their several Places were by force of the King 's Writ in every County chosen in full or open County by the Freeholders of that County the Freeholders as the Representatives of all the People chose their Sheriffs But in Antient Cities which were Counties incorporated the Election of their Sheriff was by the Representatives of the Citizens which were the most substantial Part of the Citizens and distinguish'd by their Liveries to which they were called by their several Companies which Companies were Corporations and made By-Laws severally in their several Halls and together at their Common-Hall antiently called their Hall-mote or Hall-court which was and still is Conventus Civium in Aulam Publicam L.C.J. Cook 's Jurisdiction of Courts F. 249. And this Convention or publick Meeting in London was antiently called the Hall-mote or the Folk-mote and is at this Day by Prescription time out of mind the Antient Folk-mote of London for the chusing of Sheriffs by the Citizens that are of the Livery This Right and Privilege of the Citizens of London was taken away by Will 1. called the Conqueror who finding the People generally enrag'd for the loss of their Laws and had endeavour'd to recover them with their Swords he pardons those that fought for them and at Barkhamsteed receives from the chief of them new Oaths of Fidelity and himself swears before the Arch-bishop Lanfranck and many of the Nobility to observe the Antient Laws of the Realm establish'd by his noble Predecessors Kings of England and especially those of Edward the Confessor among which were those of chusing Sheriffs This Right and Custom of chusing Sheriffs was afterwards confirmed and restored to the Citizens of London by the Charter of Hen. 1. who thereby kept the Crown tho the younger Brother and is not only their Right by Grant but by Purchase too for they have paid dearly for it when taken away against Law and Justice King Edward the First had as great need of the Kindness of his Subjects as his Progenitor therefore he courted the People in the same manner And in the 28th Year of his Reign granted in Parliament by the Statute of Articuli super Chartas to the People that they should have the Election of Sheriffs in every County My Lord Cook in his Exposition of this Statute saith That though the Words in this Statute be the King 's Grant to his People that they shall have the Election of Sheriffs which are likewise the Words of the Charter of Hen. 1. yet by the word Grant the People's Right was restored and they by virtue thereof chose Sheriffs as before the Norman Invasion and according to their antient Use and Custom That the Charter of Hen. 1. and the Custom of chusing Sheriffs in London gave no Right to the Citizens of London to chuse Sheriffs otherwise than by their Representatives in Common-Hall is plain from the Words of the Charter of K. John which is confirm'd by Magna Charta and many other Statutes for the Words of that Charter are That the Citizens of London and their Heirs shall make Sheriffs among themselves whom they will and may amove them when they will and those whom they make shall present to the Justices of the Exchequer of those things which to the said Sheriffwick appertains whereof they ought to answer us To remove Sheriffs must be by some Court that must in behalf of the People call the Sheriffs to an Accompt and that must be by a Court that by Custom and Prescription have Cognizance of the Faults and Misdemeanours done by those great Officers for which they amove them and that is the proper Work of a Court it cannot be by all the People of the whole County incorporated but is the Work of a Hall-mote or Hall-court intrusted by all the Citizens to chuse for them and the King honest and able Men for Sheriffs and to present them to the Justices of the Exchequer as they do in their Liveries to this Day and have so done time out of mind For the Right of this Common-hall or Hall-mote to elect Sheriffs there cannot be a better Proof than the By-Law of the 23 Septemb. 7º and 15º Edw. 4. which if consider'd cannot be imagin'd to be By-Laws of the Common-Council but of the Common-Hall for the By-Law of 7 Edw. 4. enacts That the Election of Mayors and Sheriffs shall be only by the Common-Council the Master and Wardens of every Mystery of the City coming in their Liveries and by other honest Men for that purpose specially summoned What is hereby enacted more than that the Master and Wardens of every Mystery shall elect in their Gowns If the Common Council were there it is an Act of the Commonalty not of the Common-Council who had nothing to do with the Matter But if this were the Act of the Common-Hall called the Commonalty as it plainly appears to be who have Power to make By-Laws in that Matter it is a good By-Law to distinguish the Representatives of the Citizens for chusing Mayors and Sheriffs from others The By-Law of 15 Edw. 4. enacts That the Masters and Wardens of the Mysteries of the City in their Halls or other Places of the City fit and convenient associating to them the honest Men of their Mysteries being clothed in their last Livery shall go together to the Guildhall of the City for the electing of Mayor c. and in their last Livery but one to the Election of the Sheriffs of the City c. And that no others besides the honest Men of the Common-Council of the City shall be present at the said Elections Now I am very confident that the Recorder himself will not under his Hand publish this to be an Act of the Common-Council for 't is not credible that the Common-Council who are said to make Laws by Advice of their Recorder and others learned in the Law should make a Law that no others besides the honest Men of the Common-Council of the City should be present at such Elections for that were
a Destruction against Magna Charta unless it be by the Citizens in Common-Hall who have that Power by Custom If the Mayor of a Corporation shall challenge a Negative Voice by his Prerogative and to deceive the People shall cause Entries thereof to be made in Books for a Record or Memorial thereof and pretend to have the Opinions of Men that have been Judges Attornies General or Solicitors General to his Majesty or his Predecessors and shall thereby prevent the good Orders and Laws that may be made to hinder undue and disorderly Elections of Mayor and Sheriffs this is a good Cause of Disfranchisement by the Common-Hall or Hall-Court If the Mayor or any of the Magistrates of the City shall alter the antient Oaths of Common Council Sheriffs and others established to prevent the selling of Judges Places and other Offices which they are or ought to be sworn not to sell but dispose of freely without Bribe or Reward 'T is a good Cause of Disfranchisement If any great Officer of a Corporation shall claim a Prerogative to make that Man a Sheriff he drinks to this is an Invasion of the Rights of the Citizens against his Duty and against Law and a good Cause of Disfranchisement This Hall-Court ought to take care that their Charter be not forfeited they ought by their By-Laws to prevent and to punish Incroachments on their Liberties against Magna Charta under Colour and Pretence of Fines and Forfeitures The raising of more than 150000 l. on Pretence of choosing Sheriffs within 44 Years last past is an Abuse of the Trust reposed in them by Kings and Parliaments 'T is a scandalous Imposition against the Right of the Subject and against Law and Justice What ill Manners is it then modestly to vindicate the Right of the Common-Hall to elect Sheriffs and to preserve the Rights and Liberties of the Citizens of London in their Representatives according to Use and Custom in all times since the Charter of Will I. and Hen. I Or what Disservice to his Majesty Cook in his 2d Instit tells us he cannot pass a Resolution of all the Judges of England in 34th Hen. 6. on this Occasion Upon a Reference by the King 's Privy Council to Sir John Fortescue and Sir John Priscot Chief Justices and to the rest of the Justices concerning a Sheriff constituted by the King himself it is thus in the Council-Book recorded 3 Martii ann 34. Hen. 6. as followeth in these Words Upon a Demand that my Lord Chancellor made to the Chief Judges and to the Remnant of the Judges how that the King's Laws neither Justice might not be executed in Lincolnshire because there was no Sheriff there and that the King by his Letters Patents under his great Seal had deputed certain Men for to have be Sheriffs there what them seemed should be done in this Behalf so that the King's Laws and Justice might been executed in that Shire as executed in other Shires in England The 2 Chief Justices the same Day came unto my Lords of the King's Council in the Sterred-Chamber and upon the above said Demand said that them seemed and so it seemed unto the Remnant of the Judges that the King did an Error when that he made another Person Sheriff of Lincolnshire than was chosen and presented unto his Highness after the Effect of the Statute in such Behalf made In the Reign of Richard II. this was a Controversy between the King and the People who under the Conduct of the Barons came to London where it was ended by the Submission of that unfortunate Prince and one of the Articles of Deprivation against him was that he displaced divers Sheriffs lawfully elected and put in their Places ill Men thereby subverting the Law contrary to his Oath and Honour The Common-Council of London as Freemen have sworn to maintain the Franchises and Liberties of the City yet they are the very Men that make By-Laws to take away this Liberty and Franchise which is a Trust lodg'd in the Common-Hall by many Kings and Parliaments The Power that a Common-Council-man has is as one of the Livery he cannot elect unless of the Livery all that are not so are commanded to withdraw by the Crier before the Election on pain of Imprisonment yet when he is elected he as is pretended has a Power in Common-Council to disfranchise his Corporation 'T is adjudged in Cook 's 5th Rep. the Chamberlain of London's Case that the Common-Council of London cannot make Laws against the Laws and Statutes of the Realm and that such Laws made by them are void But Laws made by them or other Assemblies of Men that are not repugnant to Law and Reason are good 'T is there resolved that Laws made by them pro privato lucro are voâ—d 'T is there adjudged that they may make Laws for good Order and Government the Government there intended is the Government by Law establish'd by Parliament not a Government by Officers chose by them contrary to Charters and Statutes such Laws are made against the Government of the City and are void 'T was resolved by all the Judges in England in the Case of Dungannon in Ireland that only Corporations are capable to take such Inheritances A Common-Council it seems can give what it cannot take for a Common-Council is no Corporation Trin. 32 Eliz. In an Action of false Imprisonment in the Common Pleas brought by Clarke against Gape the Defendant justified the Imprisonment for that King Edward VI. had incorporated St. Albans by the Name of Mayor c. and granted to them to make Ordinances and shews that Queen Elizabeth appointed the Term to be held there by reason of which they with the Consent of the Plaintiff and other Burgesses assessed every Inhabitant towards the erecting Courts there and ordained that if any refused Paiment he should be imprisoned and for that the Plaintiff being a Burgess refused Paiment he as Mayor justified and this was adjudged no Plea for that this by-Law is against Magna Charta and the Consent of the Plaintiff could not alter the Law If a Common-Council may take away this Liberty and Franchise of choosing Sheriffs why may they not take away their Liberty and Franchise of using Trades in the City The Law has secured the one as much as the other and the doing the latter succeeded very ill with a Mayor and Aldermen of London in the Reign of Hen. 8. Justice Crooke in the first part of his Reports fol. 33. saith That Periam Justice said he had seen a Precedent in the time of K. Hen. 8. where a Citizen of London sued a Citizen of London in the Common Bench and the Mayor and Aldermen would have him put the Matter to Compromise which he refused whereupon they did disfranchise him and he shewed this Matter to the Court and thereupon they directed their Writ to the Mayor c. to restore him to his Franchise and they assessed a Fine of an hundred Marks
upon every of them that were Parties to the Disfranchisement which they payed as appeareth by the Record and the Citizen was restored to his Franchise The Question ask'd the Judges in the 40th and 41st of Eliz. was Whether the antient and usual Elections of the Mayors Bayliffs Provosts c. by a certain select Number of the Principal of the Commonalty or of the Burgesses commonly called the Common Council or by such other Name and not in general by all the Commonalty or Burgesses nor by so many of them as would come to the Election were good in Law Forasmuch as by the Words of the Charters the Election shall be indefinitely by the Commonalty or by the Burgesses which is as much as to say by all the Commonalty or all the Burgesses c. To which all those learned Judges gave this Answer That antient and usual Elections of Officers of Corporations by a certain select Number of the Principal of the Commonalty by Prescription and not by all the Commonalty in general were good Elections and well warranted by their Charters and By-Laws also This Resolution of the Judges justifies the Custom Usage and Practice of the Common-Hall to a tittle Had they considered this very Case and heard Arguments on both sides and decided the Matter for the Common-Hall against the Common-Council they could not have adjudged more plainly and fully for the manner of electing Sheriffs of London by the Common-Hall Acts of Common-Council had no Authority to order or regulate Elections unless confirmed by Common-Hall before the Prerogatives of Lord Mayors was set on Horse-back and the Liberties of the City trodden under foot An Evil as old as Solomon for antiently such By-Laws were confirmed by the Common-Hall as appears in their antient Books and Memorials in their Guildhall In the 18th Edw. II. one John Causton had been chosen Sheriff at the usual time he not appearing upon a Proclamation the Aldermen and Commons were summoned to be at Guildhall the Michaelmas-Day next following on which Day Causton was disfranchised and put out of his Aldermanship But the Common-Hall did not confine themselves to this only they made Ordinances in their Guild-hall concerning the electing Common-Council-men in the several Wards as appears by their antient Books in the Reigns of Edw. III. and Rich. II. These antient Charters Rights Customs and Prescriptions of the City of London have been restored and confirmed to the Citizens of London in all Ages The City of London is Cor Regni therefore its Charters its antient Liberties and Customs were not only granted and sold to them by Kings but the Purchase confirmed by many Parliaments Civitas Londin habeat omnes libertates suas antiquas are the Words of Magna Charta which my Lord Cook says hath been antiently thus expounded Let the City of London have their Franchises to which they are inheritable by lawful Title by the Gift and Confirmations of Kings which they have not abused and forfeited and which are not repugnant to Law The Statute of 14 Edw. III. says The City of London shall have all their Franchises The Statute de Tallagio non concedendo ordains that all Clerks and Laymen of England shall have their Laws Liberties and free Customs as largely and wholly as they have used to have them when they had them best and that all Statutes made and Customs brought in contrary to them shall be frustrate and void for evermore The Statute of this present King and the late Queen Mary restores to the Mayor Commonalty and Citizens all their Rights Gifts Charters Grants Liberties Privileges Customs Usages Constitutions and Prescriptions and all to no Purpose The two Acts of Common-Council of the 7th and 15th Edw. 4. like the two mighty Idols Bell and the Dragon devour all our Charters Rights Liberties Customs c. and all those Statutes that give and restore them Quid juvant Statuta Pride and Ambition is the Cause of this Controversy they contend for Prerogatives which makes Men mad and they catch at Shadows and beat and wound themselves with their own Weapons I cannot forget that old Exposition of Magna Charta which says the Citizens shall have their Franchises to which they are inheritable that good old Gentleman is unmannerly for we are now told he should have said If the Common-Council please I for my part bemoan the Condition of poor Mr. Wills for notwithstanding the Advice of some of the Judges as is pretended yet if the present Case of the Common-Hall lately printed be true and they be sworn that be not elected that poor Gentleman stands in need of the Prayers of his Congregation The Consequence of this idle Controversy must be sad and fatal to him and all that shall fall under that Calamity How shall such Men act that are no Officers Men not duly elected have no Authority they are in Danger of Suits they can neither be Officers nor Judges Here are greater Difficulties like to be than when the 2 Chief Justices Sir John Fortescue and Sir John Priscott were advised with by his then Majesty's Privy Council The City will bewail this Confusion and Disorder This Calamity will be far greater than that of Lincolnshire and greater Mischiefs will ensue than are foreseen which they must answer for that are the Occasion of these undue Elections But for that poor Gentleman I say God send him a good Deliverance FINIS
to repeal the Charters of the City Magna Charta and all other Acts of Parliament for the Confirming Granting and Restoring the Liberties and Privileges of the Citizens in which they have an Inheritance For as the Lords and Commons in Writs of Summons to Parliament are call'd the Common-Council of the Kingdom and are to advise in Matters of Weight and Difficulty so is the Common-Hall the extraordinary Common-Council of all the Citizens of London These two Laws therefore cannot be Acts of Common-Council they must be Acts of Common-Hall or Hall-Court which to this Purpose are a Common-Council or a Council of the Commons and call themselves in this Act a Common-Council in the other the Commonalty who were in Council assembled as the Representatives of the Commons to make By-Laws for them and call themselves sometimes the Common-Council of the City as they properly are in this Matter sometimes the Commonalty as the Representatives of the People in Parliament are called and do call themselves in all Acts of Parliament the Commons who are but the Representatives of the Commons and are also called in the Antient Oaths of Coronation established by Parliament the Vulgi or Common People tho but their Representatives The Use and Custom of chusing Sheriffs makes this beyond Contradiction for at this very Day the Masters and Wardens of the Mysteries in the City in their Halls clothed as aforesaid go to the Elections of Mayors and Sheriffs to the Guildhall and there do elect not as Men of the Common-Council but as a Hall-mote or Hall-court and those of the Common-Hall that are not of the Common-Council meet together as a Hall-mote or Hall-court not as a Common-Council For the Peace and Quiet of the City it were to be wish'd that those Acts of Common-Council as they are said to be had never been printed they have given just cause to Men to believe That there are those that against Law and Reason against Practice and Custom would take from the Citizens the Election of Mayors and Sheriffs by their Representatives in Common-Hall They have laid a Foundation nay they have been scaffolding many Years by their Acts and Devices and have had the confidence to disturb and make void Elections by the Common-Hall and have taken away the Rights and Liberties of the Common-Hall on purpose to take Fines and then to compel the Common-Hall to new Elections a thing not known to our Ancestors This is not only levying Money at other Times and in other manner than by Act of Parliament as was done by the late K. James and is numbred among the Grievances of the Statute of 1 K. Will. and Q. Mary but is raising Money without any colour of Law and yet vindicated in the vilest manner for Men are publickly forbid to speak of or mention this Grievance because the King is beyond-Sea when in truth a greater Service cannot be to the King than to prevent these Extravagancies which are against his Coronation-Oath by which he has promis'd to govern according to the Statutes in Parliament agreed on and the Laws and Customs of England The late K. James as it is declared in the first of K. Will. and Q. Mary by Ministers employ'd by him did endeavour to subvert the Laws and Liberties of the Kingdom Laws for free Elections As that of Westminster 1st is endeavoured to be subverted by the Common-Council The Words of the Statute are For that Elections ought to be free The King commands upon great Forfeiture That no great Man nor other by Force Malice or Menaces shall disturb free Elections And my Lord Cook in his Exposition of that Statute tells us there were two Mischiefs before the making this Statute 1. Elections were not duly made 2. Elections were not freely made And both these were against the antient Maxim of the Law Fiant Electiones rite libere sine interruptione aliqua For before this Act in the irregular Reign of H. 3. the Electors had neither their free nor their due Elections for sometimes by Force sometimes by Menaces and sometimes by Malice the Electors were framed and wrought to make election of Men unworthy or not eligible so as their Election was neither due nor free This Act briefly rehearseth the old Rule of the Common Law that Elections ought to be free wherein both the said Points are included 1. It must be a due Election and 2. It must be a free Election This Statute doth enact That no Man upon grievous Forfeiture shall disturb any to make free Elections and is excellently penned in two respects First For that generally it extendeth to all Elections that is to say to every Dignity Office or Place elective be it Ecclesiastical or Temporal of what Kind or Quality soever Secondly The Act is penned in the Name of the King viz. The King commandeth And therefore the King bindeth himself not to disturb any Electors to make free Election as in the like Case upon a Statute made in the Reign of the said King The Act saying Rex perpendens c. the same bound the King Now that Electors might make free and due Elections without displeasure or fear thereof by this Act of Parliament as a sure Defence the King commandeth the same upon grievous Forfeiture And this Act extends to all Elections as well by those that at the making this Act had Power to make them as by those whose Power was raised or created since this Act. The Disturbers of free Elections he says are to be punished with grievous Fines and Imprisonment Yet how notoriously was this most excellent Law violated by the very Government of the City of London at the last Election of Sheriffs What ill and dangerous Example was given to the whole Nation by the Magistrates of the City of London at that Election What open and publick Encouragement to affront and contemn his Majesty's Laws made to prevent Disorders and Tumults What popular Confusion might have hapned from those whose Rights and Liberties were invaded against Law and Justice by the Sheriffs denying the Question that was desired to be put Whether to adhere or proceed to a new Election when humbly intreated And this was done at a time when his Majesty was out of the Realm and in Arms against a Tyrant and the Common Enemy of Law and Liberty The Common Hall are a Court of great Authority they have a Jurisdiction by Custom and have a Prescription and Custom to disfranchise and restore in their Common-Hall or Hall-Court James Baggs Case Cook 11 Vol. if the Party disfranchised have committed a Crime that deserves that Punishment if not the King may command them to restore him But no such Writ can be directed to the Common Council or Mayor and Aldermen for they cannot take away nor restore Mens Liberties and Franchises 't is against Magna Charta Every Citizen has a Freehold in the Lands Liberties and Franchises of his Corporation and a Disfranchisement by them is a Disseisin and